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Constitutional Law in Practice focuses principally, but not solely, on the litigation of constitutional matters in the High Court of Australia. In recent years, the High Court has been very active in the constitutional arena, and it is important to understand not only the substance of the issues the Court has dealt with but also how constitutional cases come before the High Court (and other courts), the process by which they are heard and decided and the relief that can be granted. In addition, constitutional law arises in practice in non-litigious settings, in particular in the provision of advice to government (both from government lawyers and from independent practitioners). This subject aims to critically evaluate the practice of constitutional law and to build key skills, such as written and oral advocacy. To that end, the assessment takes the form of preparation and presentation of both the written and oral aspects of an application for special leave to appeal to the High Court. The subject will also involve presentations from leading constitutional law academics and from practitioners who appear regularly in the High Court.
Principal topics will include:
- Initiating a constitutional case
- Bases of jurisdiction
- Applications for special leave
- Written submissions
- Oral argument
- Use of comparative and international materials
- Interpretation and overruling
- Interventions and amicus curiae
- Consequences of invalidity
- The case studies will be based on recent major constitutional litigation before the High Court. Issues to which attention will be paid in relation to each case study include:
− The basis of the decision to litigate
− Any impediments to litigation
− The jurisdiction of the High Court, including the need for special leave
− The choice of remedy or remedies
− Forensic strategy
− Methodology of the High Court, as revealed by decision
− Reflection on the nature of judicial review.
Intended learning outcomes
A student who has successfully completed this subject should:
- Understand the way in which constitutional disputes arise
- Have an overview of the issues involved in the management of constitutional litigation
- Be familiar with the documentation used in constitutional litigation
- Be familiar with the remedies for relief in constitutional litigation and their potential use
- Understand the doctrinal impediments to litigation: Jurisdiction of courts, standing, justiciability
- Understand and be able to analyse and apply the principles of constitutional interpretation used by the High Court
- Understand the relevance of international and comparative law in constitutional litigation
- Be familiar with oral advocacy techniques in the High Court
- Be familiar with the consequences of invalidity of legislation in particular contexts.
Last updated: 12 November 2022